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People v. Kim

March 16, 2009


Ct.App. 6 H029324 Monterey County Super. Ct. No. SM970463 Judge: Terrance R. Duncan.

The opinion of the court was delivered by: Werdegar, J.

Filed 3/16/09 (this opinion should follow the companion case, S151561, also filed 3/16/09)

Defendant Hyung Joon Kim was born in South Korea and entered this country legally with his parents when he was a young child. He has lived in this country as a legal resident for more than two decades but never became a citizen. As a result of his multiple criminal convictions, the federal government now seeks to remove him from the country and return him to South Korea. He petitioned for a writ of error coram nobis in the trial court, seeking to vacate the state felony convictions that triggered his federal removal proceedings. His case is one of two we decide today in which litigants seek to challenge the validity of old, otherwise final criminal convictions to eliminate them as a possible basis for removal from this country by federal authorities. As we explain in a companion case (People v. Villa (Mar. 16, 2009, S151561) __ Cal.4th ___), a person in federal immigration detention is ineligible for a writ of habeas corpus from a state court if his state sentence and probation or parole have been completed. In the instant case, we conclude defendant Kim is ineligible for a writ of error coram nobis on the facts of this case. Accordingly, because the Court of Appeal below correctly reversed the trial court's decision to issue the writ, we affirm.


A. Background

Defendant Kim was born in South Korea in 1977. His parents brought him and his brother to this country on a family visa when defendant was six years old. He became a lawful permanent resident in 1986 and has resided continuously in this country since his initial entry. His mother and brother are naturalized citizens; his father is a lawful permanent resident.

While still a juvenile, defendant was arrested on several occasions and eventually became a ward of the court in February 1995, having been found to be a minor in possession of live ammunition, a misdemeanor. (Pen. Code, § 12101, subd. (b).)*fn1 The juvenile court placed him on probation on certain conditions, including a specific prohibition against possessing weapons or ammunition. Defendant turned 18 years old in December of that year.

In April 1996, while still on juvenile probation, defendant and two juveniles burglarized a tool shed behind a residence in Pacific Grove, Monterey County, stealing three firearms. When police searched a storage shed to which defendant had access, they found the three stolen guns, some ammunition, and a ski mask. Police also found a fourth gun, a .38-caliber revolver with matching ammunition and an attached laser sight that had been stolen in a burglary in the City of Marina in 1995. Defendant was convicted of first degree burglary (§ 459), but imposition of sentence was suspended and he was sentenced to five years' probation on the condition he serve 180 days in jail. He was, however, granted an early release, with 117 days suspended, so that he could begin his freshman year at the University of California, Santa Barbara (UCSB).

Later that same year (1996), defendant was arrested and convicted of misdemeanor petty theft and second degree burglary for stealing four CD-ROM games, batteries, and cables from the UCSB bookstore. (§§ 484, subd. (a), 459, 460, subd. (b), 461, subd. 2.) The total value of the stolen merchandise was about $184. He was sentenced to three years' probation on the condition he serve 30 days in jail, which was suspended until the end of the school year.

In February 1997, defendant's parents gave him some money to buy groceries before returning to college. He went to a Costco store in Monterey County with two younger friends, one a juvenile. They proceeded to shoplift three prepaid telephone cards and a video game. They acted in concert, two of them using their bodies to shield the third from other customers while packages were opened. The trio then purchased other items and attempted to leave the store. Their activities had been observed by security personnel, however, and security guards detained them. Costco recovered the stolen merchandise, which was valued in the aggregate at less than $100.

As a result of this last incident, the People charged defendant with felony burglary for the Costco crimes (§ 459), a strike (§ 1170.12, subd. (c)(1)) for the tool shed burglary, a misdemeanor petty theft with a prior (§§ 666/484), and misdemeanor contributing to the delinquency of a minor (§ 272). Defendant negotiated a plea bargain in which he would plead guilty to felony petty theft with a prior theft-related conviction and admit the strike allegation. In exchange, the prosecution agreed to dismiss the charges of felony burglary and misdemeanor contributing to the delinquency of a minor. Significantly, in connection with this plea, defendant personally executed a written waiver of rights and placed his initials next to several statements, including this one: "I understand that if I am not a citizen of the United States a plea of 'Guilty'/'No Contest' could result in deportation, exclusion from admission to this country, and/or denial of naturalization."

The trial court accepted the plea and noted in the record that it would reserve jurisdiction to strike the prior serious felony allegation at the time of sentencing. At sentencing in October 1997, the trial court struck the strike allegation and sentenced defendant to the upper term of three years for felony petty theft with a prior and to the lower term of two years, to be served concurrently, for violating his probation in the Monterey County tool shed burglary case.

B. Subsequent Federal Proceedings and Defendant's Responses

Defendant's 1997 plea to felony petty theft with a prior theft-related conviction plunged him into a labyrinth of legal problems. On December 16, 1998, the Immigration and Naturalization Service (INS)*fn2 initiated proceedings for defendant's mandatory deportation based on his status as an alien who has been convicted of an "aggravated felony,"*fn3 which for deportation purposes is defined as "a theft offense . . . or burglary offense for which the term of imprisonment [is] at least one year." (8 U.S.C. § 1101(a)(43)(G).) A few months later, on February 1, 1999, defendant completed his three-year term (reduced by applicable credits) and was released on parole. He was detained by the INS the next day (Kim v. Ziglar (9th Cir. 2002) 276 F.3d 523, 526) and held in federal custody without bond. He was eventually released from INS custody on August 20, 1999.

Defendant successfully completed his three-year parole on February 1, 2002. On August 16 of that year, the INS filed an amended charging document, alleging that in addition to mandatory removal, defendant was also subject to discretionary removal due to his having been convicted of two crimes involving moral turpitude: the tool shed burglary and the Costco felony petty theft with a prior. (8 U.S.C. § 1227(a)(2)(A)(ii).)*fn4

Defendant then began filing collateral challenges to his various state convictions in an attempt to eliminate them as the basis for deportation. In 2003, he filed a non-statutory motion to vacate his three-year sentence (but not the actual convictions) for the Costco petty theft with a prior and the concurrent two-year sentence for the tool shed burglary. Although both sentences had been served, he claimed that when he entered his plea, he did not know the sentences would subject him to mandatory deportation by the INS. When the trial court asked the prosecutor whether he opposed the motion, the prosecutor replied: "No. I just want to say we're not opposing it. That's as far into it as I want to get." The trial court granted the motion, vacated the sentences, and resentenced defendant to serve a one-day probation on the condition he serve 364 days in jail, with credit for time served.*fn5 The result of this resentencing was that defendant served no additional time in prison (having already served a full three-year sentence), but his official sentence for the Costco crimes was now modified to be one day short of a year, thereby avoiding having either crime characterized as an aggravated felony for immigration purposes.*fn6

As a result of this retroactive resentencing, the INS amended its charging document, dismissing the allegation of mandatory removal based on the aggravated felony conviction (8 U.S.C. § 1227(a)(2)(A)(iii)) and clarifying that it was proceeding only on the basis of discretionary removal as a result of defendant's two convictions involving moral turpitude (8 U.S.C. § 1227(a)(2)(A)(ii)). The elimination of the allegation based on an aggravated felony conviction opened another avenue of possible relief for defendant in that he became eligible to move for cancellation of removal.*fn7 He so moved, and on June 27, 2003, a federal immigration judge granted his motion, thereby permitting him to remain in the country. On the INS's appeal to the Board of Immigration Appeals (BIA), however, the BIA reversed, concluding it was "unconvinced that [defendant's] long residence in the United States, his family ties and his rehabilitation outweigh his substantial criminal history and recidivism." Consequently, the BIA ordered defendant "removed from the United States to South Korea."

Despite this setback, defendant continued his efforts to avoid deportation. First, he filed a petition for a writ of habeas corpus in federal district court. That matter has since been removed to the Ninth Circuit Court of Appeals under the REAL ID Act of 2005.*fn8 Second, he began proceedings to vacate his remaining state court convictions. On October 19, 2004, the Santa Barbara County Superior Court granted his motion to vacate his misdemeanor convictions for petty theft and second degree burglary stemming from his thefts at the UCSB campus bookstore. The same court later dismissed both charges. Having ameliorated the effect of his convictions for petty theft with a prior (the Costco crimes) and burglary (the tool shed crime) by having his aggregate sentence reduced to less than one year, and having obtained dismissal of his Santa Barbara misdemeanor theft-related convictions, all that remained for defendant to do was to obtain dismissal of his Costco conviction for petty theft with a prior, which would leave him with only a single conviction for a crime of moral turpitude (the tool shed burglary) and thus ineligible for removal from the country (because 8 U.S.C. § 1227(a)(2)(A)(ii) requires convictions of "two or more crimes involving moral turpitude"). That brings us to the present proceeding.

C. The Proceedings Below

On July 8, 2005, defendant filed two motions in Monterey County Superior Court. The first, termed a "MOTION TO VACATE JUDGMENT (CORAM NOBIS)," sought to vacate his 1997 guilty plea to felony petty theft with a prior theft-related conviction (the Costco crimes) on the ground that the judgment was "based on a mistake of fact, in that no one knew: [¶] (a) South Korea was incarcerating Jehovah's Witnesses (like Mr. Kim) for three years in prison for refusing on religious grounds to serve in the military, and that Mr. Kim would face that fate if deported as a result of this plea; [¶] (b) the problem that the plea of guilty would cause defendant's deportation, even without a sentence of one year in custody; or [¶] (c) the solution that an equivalent plea to burglary under Penal Code section 459, if properly framed, would not cause this result, and if these facts had been known to court and counsel, the plea would not have been entered. . . . [¶] The plea was therefore not knowing, intelligent, free or voluntary, and was void ab initio in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and parallel provisions of the California Constitution." (Original italics and underscoring.)

The second motion, termed a "NON-STATUTORY MOTION AND MOTION TO VACATE JUDGMENT," sought to vacate the same 1997 guilty plea on different grounds. This motion alleged defendant's state and federal constitutional rights were violated because his trial counsel "rendered ineffective assistance of counsel for his failure adequately to investigate the immigration consequences of the conviction" and also "for his failure to defend Mr. Kim against a plea that would result in mandatory deportation or to make any effort to get an equivalent nondeportable conviction."

In support of these motions, defendant's then trial attorney, Thomas Worthington, provided a declaration stating that at the time of defendant's pleas, counsel "was unaware . . . that a conviction of petty theft with a prior conviction would be considered a 'crime of moral turpitude' by the immigration authorities, and trigger deportation for Mr. Kim, exposing him to arrest by the immigration authorities, requiring him to post a bond and hire immigration counsel, and resulting in his mandatory deportation if he was unsuccessful in obtaining a waiver of deportation. Therefore, I did not advise Mr. Kim of the actual adverse immigration consequences of this plea. [¶] . . . If I had been aware that an alternative plea to burglary, in the language of the statute, entry with intent to commit 'theft or any felony,' would have avoided deportation on account of a crime of moral turpitude conviction, I believe there is a reasonable probability the prosecution and [trial] court would have been willing to agree to this plea."

In a joint opposition to both motions, the prosecution argued it would have been improper to change the wording of the plea in order to thwart the immigration consequences flowing from the plea, that no mistake of fact supports issuance of a writ of error coram nobis, that evidence of defendant's religious beliefs is not relevant, that a correction nunc pro tunc is inappropriate because defendant does not seek to correct a clerical error, that no court authority exists to grant a non-statutory motion to vacate and to withdraw the plea, that defense counsel was not ineffective, and that the trial court should not attempt to nullify the order of another court (i.e., the BIA). In support, the prosecutor in defendant's petty theft case, Charles Olvis, provided a declaration stating: "I would not have agreed to allow the defendant to plead to a charge to assist the defendant in thwarting actual or potential immigration consequences. I specifically would not have agreed to a plea to a felony violation . . . with the altered language to reflect 'any felony.' I believe that a criminal conviction should appropriately reflect the criminal conduct engaged in by the defendant."

After a hearing, the trial court granted both motions. Regarding the non-statutory motion to vacate, the court explained: "[T]he Court does find that - and based in no small part on Mr. Worthington's own declaration in that regard - that given the facts presented in this case, the fact that the defendant is a Korean, that was known at the time. It was clear that there was some belief that there was - there were ties to Korea and even some possibility of him leaving the country for Korea, that immigration should have probably been an issue. [¶] As to the prejudice, based on my 30-plus years of experience in this business, I believe it's not only reasonably possible but frankly highly likely that had Mr. Worthington realized what the situation was, he would have been able to find a way to avoid the immigration consequences of . . . the defendant's conduct. I base that in part on actually Judge Curtis's remarks at the time of sentencing . . . wherein he actually demonstrates some sympathy for and some optimism for the defendant's future in striking the strike. . . . [¶] So the Court does find that there is prejudice, given the facts and circumstances of this particular case, and that it's likely Mr. Worthington would have had an opportunity to prevail on either or probably both the [prosecutor] and Judge Curtis in part in arriving at a disposition that . . . would not have incurred the consequences that Mr. Kim faces at this time." The trial court granted the petition for a writ of error coram nobis as well, explaining: "I don't know if ...

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